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	England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Azim v Tradewise Insurance Services Ltd [2016] EWHC B20 (Costs) (22 August 2016) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2016/B20.html Cite as: [2016] EWHC B20 (Costs)

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IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Sitting as a judge of the County Court at Bow

		Thomas More Building Royal Courts of Justice Strand London WC2A 2LL
		22/08/2016

Master Leonard:

1. This is the detailed assessment of the costs of the Claimant, payable by the Defendant following the acceptance by the Claimant, on 20 January 2015, of a Part 36 offer of £3,500.
2. The underlying claim was for personal injury following a road traffic accident on 15 October 2011. Three firms of solicitors represented the Claimant in pursuing that claim.
3. The first was Minster Law, which according to the bill of costs acted between 17 October 2011 and 14 November 2012 under the terms of a Conditional Fee Agreement ("CFA") dated 19 October 2011. The second firm was TLW Solicitors ("TLW"), which appears to have received the file on about 16 November 2012 and to have acted for the Claimant from that date until 23 July 2014. TLW acted under a Conditional Fee Agreement ("CFA") dated 17 January 2013 ("the TLW CFA"), the terms of which provided for it to have retrospective effect to the date of initial instructions.
4. The third firm was Russell Worth Limited, to which firm the TLW CFA was (on the Claimant's case) assigned on 23 July 2014. Russell Worth have acted for the Claimant from 24 July 2014 to date.
5. The Defendant takes issue with the validity of the July 2014 assignment and, in consequence, with the Claimant's right to recover any costs under the TLW CFA. The arguments in that respect have evolved to incorporate disclosure by the Claimant of key documents and service of supplemental Points of Dispute and Replies.
6. I should confirm my understanding (as confirmed by Mr Smith and Mr Latham for the Claimant and the Defendant respectively) that the parties require me to reach conclusions on the issues identified and addressed in submissions in the course of the hearing before me on 31 May, rather than by strict reference to the Points of Dispute and Replies.
7. The key issues to be addressed were helpfully summarised by counsel in these terms. The first is whether the Claimant's retainer with his solicitors had been terminated by them at the time of the assignment arrangement entered into on 23 July 2014. The second is whether it is possible lawfully to assign the TLW CFA in the manner attempted by the Claimant. The third is whether (assuming that lawful assignment is possible) such assignment was effective.

The Evidence

8. I have before me copies of the CFA of 17 January 2013; a letter dated 23 July 2014 from TLW to Russell Worth; a letter from TLW to the Claimant, again dated 23 July 2014; and a consent form addressed to TLW and Russell Worth and signed by the Claimant on 31 August 2014.
9. The CFA incorporates standard conditions expressly based upon the Law Society's precedent. Its termination provisions, accordingly, allow the Claimant to end the agreement at any time and allow TLW to end it under certain specified circumstances. It is not suggested by either party that any of those circumstances apply in this particular case.
10. TLW's letter of 23 July 2014 to Russell Worth reads, under the heading "Assignment of CFAs":

We refer to the conditional fee agreements listed in the attached schedule between us and those persons named for the provision of legal services in respect of personal injury claims ("Contracts").

Pursuant to and for the consideration set out in the Sale and Purchase Agreement between us and you dated 23^rd July 2014, we assign all our rights, title, interest and benefit in and to the Contracts to you (the 'Agreement') …"

11. The schedule referred to includes the Claimant's CFA.
12. TLW's letter of the same date to the Claimant, under the heading "Transfer of your Claim" reads:

"As you are aware, we are currently acting for you in respect of your Personal Injury ('Claim').

We have recently received an influx of new work as a resulting (sic) of securing a new contract, however unfortunately have been unable to replace a couple of key staff who are currently on maternity leave. This means that existing staff have more cases to deal with than we would normally wish.

Rather than have this impact on the quality of service which you receive or cause any delays to the settlement of your claim, we have put in place arrangements to pass over the handling of your case to another firm which specialises in cases such as yours. This means that you can be sure that your case can be handled in the best way possible. It is, of course, your choice as to whether you transfer to the firm we recommend or another firm and we provide further details below as to the next steps and what you need to do...

We have concluded a business arrangement with a well-established personal injury law firm, Russell Worth Limited. …

Russell Worth Limited has agreed to continue to handle your Claim on the same "no win, no fee" terms set out in the conditional fee agreement ("CFA") between us. Systems have already been put in place between us and Russell Worth Limited to effect a swift and seamless transfer of your file…

Your Claim will be handled by Russell Worth Limited on the same "No Win, No Fee" terms set out in the conditional fee agreement ("CFA") between us. You are, however, asked to sign a consent form which is enclosed…

If we do not receive a completed form, we will assume that you are content for Russell Worth Limited to continue to act for you, unless you tell Russell Worth Limited otherwise.

By returning the consent form to Russell Worth Limited, or if you have not notified either ourselves or Russell Worth Limited within 7 days of the date of this letter that you do not wish for case (sic) to be transferred to Russell Worth Limited, you will be deemed to consent to the transfer of any of your personal data held by us to Russell Worth Limited… and also to agree to the assignment of the CFA and its continued application to Russell Worth Limited…

… You are under no obligation to consent to the transfer of your Claim and file to Russell Worth Limited."

13. The Consent Form signed by the Claimant on 31 August 2014 authorises TLW to transfer money on account, relevant papers and data, including sensitive personal data as defined in the Data Protection Act, to Russell Worth Limited. It adds:

"I also confirm my consent to the assignment of the CFA to Russell Worth Limited and agree that, from now on, Russell Worth Limited may perform the solicitors' obligations under the CFA in substitution for TLW Solicitors and that, from now on, my responsibilities under the CFA shall extend to Russell Worth Limited..."

Decided Cases

14. I have, in the course of submissions, been referred to judgments in Jenkins v Young Brothers Transport Ltd [2006] EWHC 151 (QB), Jones v Spire Healthcare Ltd (H.H. Judge Graham Wood QC, the County Court at Liverpool), Webb v London Borough of Bromley (SCCO 18 February 2016, Master Rowley) and Budana v Leads Teaching Hospitals NHS Trust (District Judge Besford, the County Court at Kingston-Upon-Hull, 4 February 2016).
15. I will make three brief observations about the judgments to which I have been referred. The first is that, with the exception of Jenkins, none of them are to be regarded by a costs judge as binding. The second is that the decision in each of them turned upon the application of particular principles to particular facts. The third is that each judgment, in its particular context, nonetheless offers a helpful analysis of the principles which I have to apply to the facts of this case.

Whether the CFA Was Terminated by TLW

16. I should mention that the Defendant's supplemental Points of Dispute pursue arguments based upon the proposition that upon "selling" the TLW CFA to Russell Worth, TLW received payment of fees under the CFA and thereby terminated it: alternatively, that the fees so earned by TLW, being for present purposes unquantified, are irrecoverable. I have been unable to identify a sound basis for either argument, but as they did not fall within the issues to be determined, as identified by counsel at the hearing and were not pursued by Mr Latham in his oral submissions for the Defendant I do not believe that I need to address it further.
17. Mr Latham focused instead upon the Defendant's submission to the effect that TLW terminated the TLW CFA. He referred me to the terms of the letter of 23 July 2014 to the Claimant, incorporating as it did an unequivocal statement to the effect that TLW would not continue to represent him, and drew my attention to the finding of District Judge Besford in Budana (at paragraphs 41-46 in particular) to the effect that the receiving party's solicitors in that particular case had terminated his CFA before purporting to assign it, so forfeiting any right to payment. The facts in Budana were similar to this case in that the receiving party's solicitors had decided to stop handling personal injury litigation and to put in hand arrangements to transfer their client's case to another experienced firm. They had written to their client in very similar terms to TLW's letter to the Claimant of 23 July 2014.
18. Mr Latham also referred me to Master Rowley's findings in Webb (in particular at paragraphs 42, 43 and 44) to the effect that the receiving party in that particular case had agreed to the termination of her current solicitors' contract of retainer and the creation of another retainer with her new solicitors. Mr Latham suggests that such was the position here: TLW, he submits, terminated their retainer, the Claimant entering into a fresh retainer with Russell Worth Limited.
19. It follows (says the Defendant) that TLW have forfeited any right to payment under the TLW CFA; that the new retainer agreement with Russell Worth Limited is a CFA which, in not complying with the post-1 April 2013 provisions of section 58 of the Courts and Legal Services Act 2012, is unenforceable; and that the indemnity principle prevents recovery by the Claimant of costs by reference to either agreement.
20. It seems to me that the Defendant's case on termination rests on two overlapping propositions. First, the Defendant argues that there was no effective assignment of the TLW CFA on 23 July 2014. If that is correct it would seem to follow that TLW's letter to the Claimant (incorporating, as it did, an unequivocal statement to the effect that TLW would no longer act) could properly be said to have terminated the TLW CFA.
21. The second proposition is that the assignment arrangement of 23 July 2014 (all other arguments aside) could not be effective precisely because TLW, at the point of purporting to assign, had terminated or did terminate the TLW CFA.
22. I will address the second proposition first, on the basis (for present purposes) that the assignment of the TLW CFA on 23 July 2014 would, but for the termination of the CFA by TLW, have been effective.
23. On that basis I would first observe that the facts of this case are quite different from those in Budana and Webb. Properly analysed, the evidence does not in my view support the proposition that the TLW CFA had been or was terminated by TLW at the time of TLW's assignment agreement with Russell Worth Limited.
24. In Budana the receiving party's solicitors wrote to their client on 22 March 2013 and entered into an assignment agreement with their successor firm 3 days later, on 25 March 2013. District Judge Besford concluded, on those facts, that as at the date of the purported assignment there was no CFA to assign: the receiving party's solicitors had, in advising their client unequivocally that they would no longer act, already terminated it.
25. In Webb, the relevant assignment documents (which included a form of assignment between the receiving party and her new solicitors) were executed on 30 January 2014, at which point the receiving party's original solicitors had, following the death of one of the two partners in the firm, ceased to trade. The choice of new representation had been left to the receiving party, who chose to accept an invitation to instruct the surviving partner's new firm.
26. Master Rowley's analysis of the facts of that case (taking into account the content of pre-termination discussions between the receiving party and her original solicitors) led him to the conclusion that the contractual relationship between the receiving party and her original solicitors had (given that there was no option but to do so) ended. She then entered into a new contractual relationship with her new solicitors. The transfer of instructions to the new firm, incorporating as it did the active consent of the client, was a novation rather than an assignment: the consent of the client (although not necessarily inconsistent with assignment) was an essential element of the novation which, on the facts, had taken place.
27. In this case the documents expressed to effect the transfer of the TLW CFA to Russell Worth Limited were signed on 23 July 2014. Notice of that assignment arrangement was sent to the Claimant on the same date, and by definition will have been received by the Claimant after the event.
28. It is (for reasons advanced by the Defendant, accepted by the Claimant and considered below) an essential element of any valid assignment of a CFA between solicitors that notice of the assignment be given to the client. It is also (as Master Rowley pointed out in Webb) professionally impossible for the new firm to start work on the case without the client's consent.
29. It was accordingly appropriate for TLW to write to the Claimant, as it did on 23 July 2014, first to give notice of the assignment and second to explain that the Claimant had the option of instructing other solicitors should he choose to do so. That seems to me to offer no real basis for concluding that the TLW CFA had been, or was, terminated at the point that TLW entered into its 23 July 2014 transfer arrangement with Russell Worth Limited.
30. The Defendant argues that the notice of assignment to the Claimant dated 23 July 2014 should be construed as a termination of the CFA, but even if that is right (and I do not accept that it is) such notice had not been given at the point of executing the assignment. Following assignment it cannot (again assuming, for present purposes, that the assignment was valid) have been open to TLW to terminate it.
31. Nor was the Claimant's consent to assignment sought in advance, so as to support the argument that what actually took place was a novation. The assignment having taken place and notice having duly been given it only remained for the Claimant to choose whether to allow Russell Worth Limited to act for him, as arranged by TLW, or to instruct other solicitors.
32. In short the Defendant's difficulty is that its argument, on the facts of this case, can only succeed if one accepts that although notice to a client is an essential element of any valid assignment of a CFA between solicitors, giving such notice will in any circumstances terminate the CFA and render it ineffective. That (in fairness to the Defendant) is not how the case is put, but its case on termination seems to me to reduce to those propositions.
33. My conclusion is, accordingly, that if the assignment arrangement of 23 July 2014 was in itself valid than there is no sound basis for concluding that the TLW CFA was, at any stage, terminated by TLW. I turn to the question of whether the assignment was valid.

Whether it Was Possible Lawfully to Assign the TLW CFA

34. It is not in issue that a CFA can, in given circumstances, validly be assigned. The question is whether those circumstances apply in this case. The Defendant relies upon the principle that the burden of a personal contract for services may not be assigned and presents that principle as a bar to the effective assignment of a CFA, subject (the Defendant accepts) to one very specific exception identified in Jenkins. That exception, says the Defendant, arises only where a solicitor who enjoys the particular trust and confidence of the client moves from one firm to another. Neither party suggests that such was the position here.
35. All of the judgments to which I have been referred by the parties addressed the question of whether, on the facts of the particular case, a CFA was validly assigned. The relevant principles were helpfully summarised at paragraphs 31 and 32 of the judgement of HHJ Graham Wood QC in Jones v Spire Healthcare Ltd:

"… the court is concerned with choses in action, that is non-tangible property and future entitlements, or present entitlements realisable in the future. The general principles... can be distilled as follows:

…The benefit of a contract, other than one which involves personal skill and confidence dependent upon a particular individual discharging obligations under it, can be assigned, whereas the burden cannot, subject to certain exceptions. One of those exceptions arises where the benefits and burdens are inextricably linked, for instance where entitlement to the right or benefit is dependent or conditional upon the discharge of certain responsibilities."

36. In Jenkins the receiving party (Mr Jenkins) had signed his CFA with Girlings, solicitors. He had then followed a particular solicitor, "FP", who continued to handle his claim, through two changes of firm. The question was whether the assignment of the receiving party's CFA, on each change of firm, was valid. Rafferty J (as she then was), upholding the decision of Master Campbell, concluded that both assignments were valid.
37. Her key conclusions in that respect are to be found at paragraphs 28-31 of her judgment:

"… Since…the facts in this case are singular we have not derived assistance from the authorities on assignment to which we were referred. Significant in our conclusion is the intention behind the course adopted. Mr Jenkins wished to follow FP to her new firms and with good reason. Three firms agreed with him and with one another. All this is relevant to our conclusion on the argument…that a contract involving personal skill and confidence cannot be assigned. We are confident that the directing motive for Mr Jenkins was his confidence in FP's skill, expertise and professional judgment and that what was put in place was intended to give effect to it. He sought to preserve and rely upon the trust and confidence he had in FP and in our judgment it would be a novel approach to the administration of justice were this court to seek on its merits to interfere with a professional relationship whose propriety and worth has never been challenged…

The benefit of being paid was conditional upon and inextricably linked to the meeting by Girlings of its burden of ensuring to the best of its ability that Mr Jenkins succeeded...the condition was relevant to the exercise of the right. In our judgment, upon the facts in this case the benefit and burden of the CFA could be assigned as within an exception to the general rule….

…The relationship between client and solicitor involves personal confidence. As we have already rehearsed, what drove these events was the trust and confidence Mr Jenkins had in FP based on her uninterrupted conduct of his case. Whether, absent that trust and confidence, a CFA could validly be assigned is not a matter upon which it has been necessary for us to reach a conclusion".

38. In Budana District Judge Besford concluded that he was bound to follow the ratio in Jenkins, which was that (paragraph 51 of his judgment) contracts involving personal skills are capable of being transferred, permitting (paragraph 39) the transfer of a CFA between firms. As to the personal connection between solicitor and client, he commented (paragraph 56):

"… Whilst the personal connection in Jenkins was an important factor it was not a necessary condition of the transfer being valid. To make such a finding would introduce an element of subjectivity as to the degree of trust and confidence required to validate the assignment. In my judgment, following the ratio in Jenkins I am bound to find that it is now possible to assign contracts involving personal skill, even where there was previously no personal relationship between the claimant and the new firm".

39. In Webb Master Rowley, having concluded that a novation rather than an assignment of the receiving party's CFA had taken place, went on to consider whether any such assignment would have been valid. His conclusion (paragraph 46) was that the relationship of trust and confidence between the solicitor and the client in Jenkins was crucial to the conclusion of Rafferty J. In the absence of that factor, Jenkins was to be distinguished and was not binding upon him: the assignment relied on by the receiving party, in purporting to assign the burden of the CFA along with its benefit, was he concluded invalid.
40. In Jones v Spire Healthcare Ltd HHJ Graham Wood QC reached a different conclusion. In that case the receiving party's original solicitors had gone into administration. Her new solicitors entered into a "generic" deed of assignment under which the benefits and burdens of a number of specified retainers, including that of the receiving party, were said to be transferred. That was followed a week later by a separate deed of assignment signed by the receiving party herself.
41. The paying party argued that the receiving party's CFA was not capable of assignment because it amounted to a contract of personal services which did not come within the specified exception of trust and confidence which could be identified in the decision of Rafferty J in Jenkins. The learned judge rejected that argument. At paragraphs 71-77 of his judgment he set out his reasoning:

"… It does not appear to be in dispute that a solicitor's retainer involves a contract for personal services, and therefore is a personal contract. The assignment of both benefit and burden can only be effected in exceptional circumstances because of the nature of the personal obligations involved and in any event with tripartite consent. The general rule which appears to create an exception to the restriction on the assignment of a burden as opposed to benefit appears to have evolved in cases where the recipient of an assigned benefit has had imposed on him or her a reciprocal or corresponding burden…

It is important to distinguish, it seems to me, between the species of personal contracts which require a more restrictive approach generally on the question of assignment, and the concept of "personal trust and confidence" which is said to be the feature which drove the conclusion in the Jenkins case, and which made the decision singular on the facts. It is to be noted that in paragraphs 29 and 30 of the judgment of Rafferty J, insofar as those paragraphs purport to convey the ratio, there is no reference to a qualification of the exception to the general rule that this was a personal contract. In other words, the court was approaching its decision by applying…general principles of conditional benefit culled from the earlier authorities...

In my judgment and on careful reading of those paragraphs, Rafferty J was not seeking to qualify the exception to the general rule against the assignment of the burden of a contract to specific situations where personal trust and confidence could be established so much as to set a context in which it applied to the facts of the case. The analysis of the authorities which established the concepts of conditional benefit, reciprocity and relevance are not referred by her as relating to non-personal contracts. It seems to me that paragraph 30 lies at the crux of the decision. The judge made it plain that the benefit of being paid was conditional upon and inextricably linked to the burden of performance under the conditional fee agreement so as to enable an assignment to take place. In my judgment having followed the development of the exception through those authorities…the judge was doing no more than applying the principles which they established to the facts of the case before her. It was open to the judge to conclude that the personal trust and confidence was a necessary element where the contract was a personal one, as opposed to a compelling context, and without it the assignment would not be valid. She did not go so far as to say that, and in my judgment the ratio of her decision was not so qualified...

Whilst the reference in paragraph 28 of the judgment in Jenkins to the intention behind the course adopted relates to the wish of Mr Jenkins to follow his solicitor from one firm to another, in my judgment it is similarly impossible to ignore what was intended by the arrangement entered into in this case. Rules restricting burden assignment were clearly devised to protect the non-participating counterparty…In circumstances where there is tripartite involvement to the extent that not only do the assignee and the assignor agree to the shifting of the burden, but so too does the recipient of the benefit (here the Claimant) and a separate deed of assignment is entered into in relation to her own conditional fee agreement, it would be an unduly restrictive and overly legalistic approach to deny the parties the effect of what they intended...

There is a further matter which has influenced my decision that the ratio in Jenkins is not qualified in the way suggested… if the efficacy of an assignment depended upon a qualitative assessment of the degree of trust and confidence, this would generate considerable uncertainty, leading to potential satellite costs litigation whenever a retainer is challenged on the basis of purported CFA assignment, with the court being required to investigate in every case the nature of the relationship between the client and the solicitor. It is axiomatic that case handling these days is conducted at a distance, and it would be very difficult to identify those cases where a particular client had been insistent on the continuity of a specific fee earner. Of course every case depends upon its own particular facts, but in my judgment it would be wrong to qualify this particular exception to the general rule based upon an inextricable link between burden and benefit, by making a finding of trust and confidence a pre-requisite."

42. That is reasoning with which I respectfully agree. It seems to me that Rafferty J found limited assistance in the authorities to which she had been referred in applying a principle, which may be said to exist for the benefit of the non-assigning party, to circumstances in which the non-assigning party had every reason to (and did) accept an assignment. Nonetheless she applied established principles in coming to the conclusion that a CFA could be the subject of a valid assignment, and she expressly stopped short of any finding to the effect that a relationship of personal trust and confidence between a particular solicitor and a particular client was a prerequisite to that. For the reasons given by both District Judge Besford and HHJ Graham Wood QC the imposition of any such prerequisite would in my view be inappropriate.
43. In summary I can identify no obstacle, in the principles governing assignment of the benefit and burden of contracts, to the validity of a bona fide, arms-length CFA assignment in the circumstances of this case.

Whether the Assignment was Effective

44. Mr Latham refers me to the provisions of Section 136 of the Law of Property Act 1925. The benefit of a contract, as a chose in action, is capable of assignment provided that it complies with certain specific requirements including that it is in writing under the hand of the assignor and that express notice in writing of the assignment has been given to the debtor.
45. I do not need to go into more detail about the statutory requirements because the Defendant's case is not that the evidence before the court demonstrates that the Claimant has failed to comply with them. It is that the Claimant's failure to make full disclosure of all of the contractual documentation raises sufficient doubt about statutory compliance to justify the conclusion that the Claimant has not discharged the burden of demonstrating that the assignment is valid by reference to the statutory requirements.
46. The point is that not all of the contractual arrangements between TLW and Russell Worth Limited have been disclosed. Mr Latham argues that in order to determine whether the assignment of the TLW CFA met the statutory requirements, the court must see all of the documentation. Given that the letter from TLW to Russell Worth Limited dated 23 July 2014 was expressed to be "pursuant to" a Sale and Purchase Agreement of the same date, the terms of that agreement must be pertinent.
47. Because that agreement has not been disclosed, argues Mr Latham, the court cannot be completely satisfied that the statutory requirements have been met. This raises an element of doubt which, in accordance with CPR 44.3(2)(b), must be resolved in favour of the paying party. Alternatively, in accordance with general principles of evidence it is for the Claimant to establish a valid assignment between TLW and Russell Worth Limited, and in withholding the Sale and Purchase Agreement of 23 July 2014 the Claimant has failed to disclose all pertinent terms and so to discharge that burden.
48. I am unable to accept those arguments. First, as I explained in the course of oral submissions, in my view CPR 44.3(2)(b) addresses only the resolution of doubt in relation to the reasonableness or proportionality of costs. It does not create a general exception to the established rules of evidence.
49. I agree that it is nonetheless incumbent upon the Claimant to demonstrate that the assignment relied on by him is valid in complying both with the statutory requirements and with the principles I have attempted to summarise. To my mind the documents disclosed by the Claimant are perfectly sufficient for those purposes and I am unaware of any reason to suppose that the Sale and Purchase Agreement would add anything material. The suggestion that it might seems to me to be entirely speculative.
50. Mr Smith for the Claimant submits that the only possible ground for arguing non-compliance with section 136 in this particular case might be that in order for the assignment to be effectual in law, the section requires that "notice in writing has been given" to the non-assigning party. Here, notice was contemporaneous with the assignment rather than preceding it, but nothing really turns on that.
51. I agree. At most, one might argue that the assignment does not become effective under Section 136 until notice has been given: there is no express requirement in the statute for notice of assignment to be given in advance of assignment and no reason to put a gloss upon the statutory provisions by imposing one.
52. For those reasons I find no sound basis for concluding that the assignment of the TLW CFA on 23 July 2014 in any way failed to comply with the provisions of Section 136 of the Law of Property Act 1925.

Whether there was a Novation

53. It follows from the conclusions I have drawn that a novation did not take place. The TLW CFA was validly assigned to Russell Worth Ltd on 23 July 2014 and the Claimant was, after the event, given notice of the assignment. His consent was sought to the transfer of money, papers and information, in accordance with professional obligations. It was not sought for the purposes of a novation.

Vicarious Performance and Qualified One-Way Costs Shifting

54. Mr Smith raised two further arguments for the Claimant which, in the light of the conclusions I have reached, need be addressed only briefly. The first is that, even if the assignment of 23 July 2014 were for any reason invalid, the Claimant would be in a position to rely upon the doctrine of vicarious performance.
55. His point is (as I understand it) that if TLW had failed validly to assign the burden of the TLW CFA, the Claimant could be said to have accepted the performance of TLW's contractual obligations by Russell Worth Ltd and accordingly, under the principles applicable to vicarious performance, to be liable to pay TLW for the work done by Russell Worth Ltd under the terms of the TLW CFA.
56. I have of course found that the assignment of the TLW was valid, but I would be unable to accept Mr Smith's argument on vicarious performance because the right of a contracting party to pass its performance obligations on to another person depends upon the circumstances and in particular on the terms and nature of the contract itself. In my view a solicitor is not in a position to do so, at least absent some very specific contractual provision to that effect.
57. In any event the facts of this case not support the argument. I have already reached the conclusion that had the assignment of 23 July 2014 not been valid, then the notice of assignment given by TLW to its client would have terminated the retainer.
58. Mr Smith's second argument is that were I to accept the Defendant's submissions, the Claimant would be left without the benefit of either a CFA or of the QOCS regime set up to preserve access to justice following the abolition, from 1 April 2013, of recoverable success fees. A conclusion in favour of the Defendant would, he submits, be inconsistent with the intention behind that regime.
59. I am unable to accept that particular submission for the reason advanced by Mr Latham. I am required to come to a conclusion on the law as it stands. Consistency with the intention behind the QOCS regime is not a relevant consideration.

Summary of Conclusions

60. The TLW CFA of 17 January 2013 was not terminated by TLW.
61. The assignment of the TLW CFA on 23 July 2014 was valid.
62. There was an assignment of the TLW CFA, not a novation.
63. It follows that the indemnity principle does not operate to prevent the recovery of the costs incurred by the Claimant and payable both to TLW and Russell Worth Limited under the terms of the TLW CFA.